Micro-Drone Report Released

On April 1, 2016, the FAA’s Micro UAS Aviation Rulemaking Committee (ARC) released its recommendations on a framework to regulate small consumer drones. The ARC was composed of a group of stakeholders, largely from the drone industry, and was tasked with developing performance and operational regulations for drones engaging in flight over people.

The FAA will use the information and guidance provided by the ARC to create “a flexible, performance-based proposed rule.” Until the issuance of such a rule, there remain many questions as to how the FAA will regulate consumer drone use. But, it appears that the ARC report points to a possible, or even probable, relaxing of earlier statements by the FAA indicating the likelihood of very restrictive regulation of even the smallest drones. This report may be the first signal that the FAA is willing to permit certain drones, in select circumstances, to operate outside the general regulations.

The report recommends dividing small consumer drones into four categories, depending on the level of risk of injury posed as a result of flight over people. For each category, the report recommends a risk threshold based either on the drone’s weight or “impact energy equivalent” and corresponding operational limitations. The ARC’s report can be read here.

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Local Drone Regulations and Possible Federal Preemption

As we have written before, State and local agencies are not waiting for the federal government to address issues of local concern regarding consumer and recreational drone use. For instance, the Golden Gate Bridge, Highway and Transportation District today posted a notice prohibiting operation of drones near the Golden Gate Bridge.

GGB Drone Notice

Such local action raises legal issues concerning preemption by the federal government—specifically the Federal Aviation Administration (FAA). On December 17, 2015, the FAA’s Office of the Chief Counsel released a Fact Sheet addressing issues of Federal preemption of state and local drone regulations.  According to the fact sheet, the FAA is broadly empowered by Congress to regulate “matters pertaining to aviation safety.” More specific to drone use, the FAA Modernization and Reform Act of 2012 directs the FAA to establish  requirements for safe operations of drones posing little or no public risk or threat to the national airspace system.  The FAA has required the registration of drones which it claims is consistent with its authority under the law.  Because the FAA’s registration is required for operating a drone in navigable airspace, “no state or local government may impose an additional registration requirement on the operation of UAS in navigable airspace without first obtaining FAA approval.”

A recent New York Times article suggests that the FAA’s preemption arguments may not deter state legislators, including Senator Gaines (R-El Dorado), from continuing efforts to regulate drones at the state level.

Notwithstanding the FAA’s position, we think that the preemptive effect of federal drone regulation will be limited, especially to the extent that local regulations are directed at issues not within the FAA’s purview, such as privacy, security (including law enforcement), and land use (including trespass and zoning). In any event, it is growing increasingly clear that states and local governments are disinclined to wait for the FAA to regulate drone use.

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Is Your Drone Naughty or Nice? The FAA Begins Drone Registry Requirement on December 21

The FAA today announced the launch of its consumer drone registry program. Here is a FAQ the FAA has posted about the program. The program requires registration of all drones greater than .5 pounds, whether flown for commercial or recreational purposes. All new drone owners must register beginning on December 21, 2015—people who already own a drone have until February 20, 2016 to register. A $5 registration fee is waived for those who register before January 20, 2016. A preliminary review of the program indicates it to be quite expansive. Upon registration, all drone owners must attach a unique registration number to the drone and carry a registration certificate—in either hard or electronic form—when operating a drone.

The new registration requirements raise a number of legal questions. These range from the general, including whether the FAA even has the authority to require such mandatory registration at all, or if it may do so without a more formal public comment process, to the specific, including whether and how non-citizens will register—under the present guidelines, neither are subject to the registration requirement as the FAA only claims authority to register drones belonging to US citizens and permanent residents.

Failing to register as required can result in civil penalties of up to $27,500. However, Michael Whitaker, deputy FAA administrator has stated that “the goal is not to be punitive, but to get people into compliance with the regulations.”

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The FAA Rushes Recommendations Ahead of Christmas Shopping Season

On November 21, an FAA task force made up of representatives of manufacturers, pilots, government officials, and other technologists released its recommendations for how to monitor recreational use of drones—as distinguished from commercial users. The FAA had given the task force only four weeks to prepare its recommendations, hoping to act on them in time to apply to what is anticipated to be a huge Christmas drone-shopping season.

The recommendations include a registration process for all recreational users, with the resulting creation of a national database of drones. Such a database could be key in efforts to link a drone to its operator. Enforcing drone restrictions now is very difficult as it can be impossible to find the operator when an anonymous drone is mis-used. The registration requirements would be augmented by a requirement that each drone display its registration number. In a controversial move objected to by some toy manufacturers, the task force recommended that the registration rule apply to any drone weighing over 250 grams (a little more than half a pound). This would include most drones used by hobbyists. The task force did not recommend measures suggested by privacy advocates that all drones broadcast registration information by way of a transponder

Next steps are for the FAA to consider and adopt/modify/reject the recommendations. A key decision for the FAA will be how to enforce the registration requirement. The task force recommended a “reasonable and proportionate penalty schedule” less than the $25,000 maximum that presently applies to aircraft registration violations. In order for the registration requirement to have any teeth, a sizable penalty will be necessary to achieve any kind of deterrent effect.

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FAA Creates New Task Force to Study Non-Commercial Drone Registration

The Federal Aviation Administration announced today that it was creating a task force to develop recommendations for a registration process for all consumer drones—even those flown by hobbyists and therefore not subject to proposed rules governing commercial use of drones.  This action is recognition that the distinction between commercial and non-commercial use may not make a difference in achieving safety and security goals.   The task force is expected to provide a report by Thanksgiving.

It is not at all clear how the registration process will work.  Will there be exemptions for small or lightweight drones, or drones that are incapable of flying above a certain height?  Will the registration requirements apply retroactively?  What about drones that are not purchased fully functional, but are assembled by hobbyists from separate parts?  Finally, absent legislative or regulatory action, will the FAA actually be able to implement any recommendations proposed by the task force?

More fundamentally, requiring hobbyists to  register a drone may not address operational restrictions that continue to emphasize the difference between commercial and hobbyist use.   Non-commercial use is still going to be largely free from restrictions such as geographical restrictions, speed or height restrictions, and other regulations that address potentially unsafe operation.

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California City Bans Drones

The City of Poway, in San Diego County, has passed an urgency ordinance that effectively bans the use of drones in any open space or rural residential area. The stated purpose of the ordinance is to prevent interference with firefighting efforts, though the measure is very broad. The measure was enacted pursuant to Government Code Section 65858, which permits a city to enact an urgency ordinance to “protect the public safety, health, and welfare.” The ordinance will remain in effect only until October 15, 2015, although the City Council can extend the ordinance twice, after public notice and hearing, for almost two additional years.

In order to avoid any issues of federal preemption, the ordinance does not restrict the actual flight of drones. Rather, it prohibits launching, operating (i.e. controlling a drone during its flight), or landing following flight. The City Attorney’s opinion in the staff report accompanying the ordinance concluded that focusing on the use of property within the city by way of implementing zoning regulations, rather than on flight itself, the City would be acting within its constitutional police powers. The ordinance therefore emphasizes that “without stable, well-planned neighborhoods, and urban planning, sections of the City can quickly deteriorate, with tragic consequences to social environmental and economic values.”

The ordinance contains an exemption for drones owned or operated by local, state, or federal law enforcement or emergency response personnel while acting in their official capacities.

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Governor Vetoes SB 142

SB 142, which would have prohibited flying a drone over private property, has been vetoed by Governor Brown. In his veto message the governor wrote “Drone technology certainly raises novel issues that merit careful examination… This bill, however, while well-intentioned, could expose the novel hobbyist and the FAA-approved commercial user alike to burdensome litigation.” His veto came after intense opposition from the media industry, focused in part on uncertainties created by the measure’s use of a 350 foot ceiling for prohibited flight. There are still other drone bills pending so stay tuned for more legislative action in the very near future.

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California Legislative Action

California lawmakers on Monday approved two bills that, if signed by the Governor, will regulate drone use in California. SB 142 would make it a crime to fly a drone less than 350 feet above private property without permission. The 350 limit represents a balance between those who think the limit should be 400 feet to avoid preemption by FAA regulations and those who argue that a better limit would be 200 feet to allow drone operators more flexibility to operate below 400 feet—for instance to develop drone delivery capability.  SB 142  carves out an exception for “otherwise lawful activities” of law enforcement personnel or government agencies.

AB 856 is a so-called “anti paparazzi” law. It expands existing liability for invasion of privacy to include a person who knowingly enters into the airspace above the land of another person without permission in order to capture a visual image or sound recording of the person “engaging in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person.” The new law, if signed by the Governor, provides for the imposition of damages, including punitive damages, for commercial use of any recorded images that result from an invasion of privacy.

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Los Angeles is paying attention to commercial drones

On August 28, 2015, the Los Angeles City Council unanimously tasked its City Attorney with drafting an ordinance to regulate the use of drones within five miles of any airport.  Perhaps more significantly, the Council called for an ordinance that would prohibit the operation of a drone “in a careless or reckless manner.  You can find the Council’s recommendation here.  The City is part of a growing movement of local agencies looking for ways to regulate, and prohibit, private drone use within its jurisdiction.  Whether sports stadiums, airports, or critical infrastructure, there is a growing movement that seeks to blur the distinction drawn so far by the FAA between commercial and non-commercial use.  At the federal level, this movement finds its voice in the Senator Feinstein’s proposed “Consumer Drone Safety Act” which would impose restrictions on non-commercial use of drones, including a requirement for geo-fencing or other collision avoidance technology.

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Update #2 on California Legislative Action on Drone Use

We just blogged about AB 56, wending its way through the California Legislature. SB 142 is also not without controversy.  This measure, which was originally drafted as an anti-paparazzi statute, incudes a prohibition against use of drones less than 350 feet above ground level of private property.  The Consumer Electronics Association has sent a strongly worded letter of opposition, published here, asserting that the 350 foot rule is arbitrary and would unleash a wave of litigation, including on federal preemption and constitutional grounds.

The deadline for passing AB 56 this year is September 11, 2015.

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Update on California Legislative Action on Drone Use

We wrote last year that 2015 would be a critical year in the development of drone law in California. We continue to monitor the three bills that are wending their way through the legislative process: SB 142, SB 271, and AB 56. AB 56 appears to be the most controversial at this point—you may recall that the bill’s original intent, still preserved, is to allow for use of a drone by law enforcement—so long as such use complies with the Fourth Amendment (i.e. a warrant is obtained as necessary and applicable). In the last week, largely in response to privacy concerns, and in particular those expressed by the ACLU, the bill has been amended in a number of ways that might increase its chances of passage, although perhaps at the risk of creating legal ambiguities while resolving political stumbling blocks.

First, at the most general level, the statute now allows use of a drone by law enforcement only when such use complies with the “protection of the inalienable right of privacy guaranteed by the California Constitution.” More specifically, any law enforcement agency that uses a drone must keep records of such use, including whether or not it sought a warrant and if the warrant was granted. In addition, the law enforcement agency must develop a policy that demonstrates how the “collection, use, maintenance, sharing, and dissemination” of information and data gathered through the use of a drone is “consistent with respect for an individual’s privacy and civil liberties.” The policy must also specify the circumstances under which a done may and may not be used, including time requirements, training requirements for authorized employees, and other restrictions. Finally, the policy must prohibit the use of a done solely for the purpose of monitoring activities protected by the First Amendment or “the lawful exercise of other rights secured by the United States Constitution, the California Constitution, and federal and state law. The policy shall also prohibit the use of a drone system to engage in discrimination on the basis of race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity.”

These provisions might appear to be aspirational and difficult to enforce. But the statute as amended now creates a civil right of action against any person who knowingly violates the statute—including both the policy requirements as well as the underlying prohibition against use that violates the Fourth Amendment. The statute provides for punitive damages and attorneys’ fees in addition to any actual damages. It is not difficult to imagine litigation alleging that use of a drone violated an individual’s privacy rights, not to mention Fourth Amendment rights.

If the bill passes as currently drafted, law enforcement agencies will need to be extraordinarily careful that use of a drone does not implicate the privacy rights now protected by the statute. September 4 is the last day to amend a bill, and all bills must be passed by September 11. So we will know soon whether and how California drone law has changed.

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Local Government Innovative Uses of Drones

Use of drones by government for firefighting and surveillance by law enforcement has been well covered in the news. Here are some other possible uses of drones being explored by local government. A full list, including some that are unlikely to get much traction (crowd control by way of drone-delivered pepper spray?) is here. As we have written elsewhere, even the most innocuous proposed use is likely to elicit concerns from the public and from privacy advocates unless local government engages in careful planning and an open public process prior to use of drones.

1. Somerville, MA is exploring use of drones to examine snow covered houses in order to make sure that roofs don’t collapse.
2. Greensboro, NC is considering use of drones to respond immediately and preliminarily to a 911 call to give first responders a preview of the scene.
3. Ann Arbor, MI is exploring using drones to map unpaved roads, discover potholes, and determine other road repair needs.
4. Duxbury, MA is considering using drones for purposes of building inspection and storm damage assessment.

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Legislative Update

AB 56, written about in a June 20 blog post, was significantly amended by its authors on June 24, 2015.  As originally written, the bill would have significantly limited local government’s use of drones for non-law enforcement purposes.  As amended, it is now limited only to drone use by law enforcement and no longer contains the requirement that any local agency provide public notice before using a drone for any purpose whatsoever.   AB 56 continues to require that a law enforcement agency obtain a warrant before using a drone to surveil private property.  The bill, as amended, is schedule for a hearing before the Senate Public Safety committee on July 7, 2015.

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Senator Feinstein Wants to Regulate Non-Commercial Drone Use

Senator Diane Feinstein wants to close what she describes as a “loophole” in current efforts to regulate commercial drone use.  The loophole is the entire distinction between commercial and non-commercial use.   In particular to protect public infrastructure like airports, power plants, and bridges, Senator Feinstein last week proposed legislation that would expand the FAA’s pending regulation of commercial drones to include non-commercial use.

The Senator’s proposed bill would require the FAA to develop rules for both recreational drone flight and the manufacture of the devices. In its flight regulations, the agency would have to set a limit on maximum altitude, restrictions on where the devices can be flown and prohibitions related to weather and time of day. For the manufacturing rules, the FAA would have to bar manufacturers from making drones that can fly beyond a certain altitude, require the installation of sensors or software to avoid collisions and mandate systems to prevent drones from being flown close to airports and other protected airspace, among many other stipulations.

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Drone Use by EMS

Google was granted a patent on the use of drones to provide emergency medical service. Patent 9,051,043, issued June 9, covers the use of unmanned aerial vehicles to provide emergency medical support.  This is an example of yet another innovative idea for the use of drones as a platform for existing technologies.  Perhaps a drone can deliver supplies to an incident location more quickly than an ambulance? Or transmit data to medical workers?

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Sharks have privacy rights too?

The City of Seal Beach’s lifeguards have been using drones to spot sharks swimming off local beaches.  See report here. As has been the case in other jurisdictions, privacy rights have been raised as a concern and the City Council may be getting involved to establish a policy on use by lifeguards.  As has been reported in a separate post on this blog, if  AB 56 becomes law,  the City would be required to set a policy and provide public notice before any further use.

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Local Government Update from the Wild West of Drone Regulation

Three bills are wending their way through the State legislature that may have particular relevance to drone use relating to local government in California.

AB 56 would require a local agency to develop use policies and provide public notice prior to use of a drone for any purpose.   It also places warrant requirements on law enforcement use.  Rather than earlier attempts at crafting specific warrant requirements, AB 56 relies on existing 4th amendment jurisprudence and requires that any use of drones 56 also by law enforcement complies with protections against unreasonable searches and seizures. AB 56 also places some restrictions on the use of drones by local agencies outside their jurisdictional boundaries—for instance use by law enforcement in an adjacent city. If enacted, this would be the first time legal authority has been expressly granted to local government to use drones for government purposes.

SB 142 expands trespass law to include trespass by a drone over another’s land without the consent of the landowner or without legal authority.  This bill may provide a helpful mechanism for public agencies looking to restrict drone use over public land.  It may also create problems for a public agency that flies a drone over private property without a warrant.

SB 271 criminalizes operation of a drone above the grounds of a public school without permission by the school principal.  It contains an exception for journalistic use, and attempts to define mainstream journalistic use by a “publisher, editor, reporter, or other person connected with or employed by a newspaper, magazine, or other periodical publication, a radio or television station, or by a press association or wire service.” This definition may be a controversial one given the widespread posting on the internet of videos taken by drones.

All three of these bills are worth tracking.

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CNN Undeterred by Jon Stewart Mockery

In March, 2015, Jon Stewart skewered CNN for its use of drones to cover the 50th anniversary of the Selma march.  Nevertheless, CNN is continuing to explore use of drones it its news coverage.  On May 6, 2015, the FAA announced that it has authorized CNN to participate in testing of drone flights in urban areas for newsgathering purposes.  The key item being tested is whether and how the line-of-sight restrictions can be expanded.  CNN is partnering with the Georgia Institute of Technology.

 

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City of Walnut Creek Passes on Use of Drones to Monitor ‘Rowdy’ Behavior

At its meeting on May 5, 2015, the City of Walnut Creek considered whether its police force should use drones to monitor late night rowdy behavior on weekends.  Its police chief, Thomas Chaplin, told the City Council that he had “no desire to embark on [the] journey” of exploring use of drones.  He expressed particular concerns regarding privacy issues arising from possible appearance of any drone video on YouTube.  Interestingly, the skepticism over the use of drones was contrasted with more enthusiastic support for use of body cameras.

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Why Only Regulate Commercial Drone Use?

Last week, I blogged on the fuzzy distinction between commercial and non-commercial drone use. This issue is of particular concern to Senator Feinstein, who is considering introducing a bill she is calling the Drone Safety Act.  In testimony on April 22 before the Transportation, Housing, and Urban Development subcommittee, the Senator expressed concern that non-commercial drone use “could also be a safety risk in untrained hands and this is a gap in the legislative authority of the regulatory agency that prevents FAA from regulating drone manufacturers if their drones might be used for recreational purposes.”  Among other things, Senator Feinstein is interested in requiring that drones come with “geo-fencing” technology pre-installed so that drones are automatically prevented from flying over specified areas—for instance security-sensitive infrastructure.

Senator Feinstein’s measure, if introduced, is likely to require FAA certification for any private drone use, and would obliterate the distinction between commercial and non-commercial use.  It would also provide the FAA with additional enforcement authority.

This issue may be of particular concern to municipalities and local agencies exploring the limits to their authority to regulate drones flying in their airspace (see the Golden Gate Bridge’s concerns on this issue here).  Applying traditional concepts of trespass to drone flight may be difficult under State law.

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The Wild West of Commercial Drones – Why 2015 Could Be a Pivotal Year in California

Article by Steven Miller and Nicole Witt,  published in the spring edition of Public Law Journal.

Please click here to read the full article (PDF).

Reprinted with Permission of the State Bar of California

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Commercial v. Non-Commercial Drone Use

Pursuant to federal law, the FAA may regulate commercial drone use, but does not, with certain limited exceptions, have the authority to regulate recreational use of drones by hobbyists.  The distinction can be frustrating, and may have little relevance to those looking to promote safety.  What  difference does it make, from a safety perspective, whether a drone is being flown for commercial or non commercial purposes?

The Golden Gate Bridge, Highway and Transportation District has highlighted this issue in a letter it has posted to the FAA’s docket for its proposed rule on commercial drones.

In the letter, the Golden Gate Bridge accurately points out that a drone taking pictures of security-sensitive areas of the Bridge poses a security threat regardless of whether the operator is being paid—indeed, non-commercial use may have more pernicious intent. Here’s an article about issues concerning drone use near the Golden Gate Bridge.

The distinction between commercial and non-commercial use may be one without a difference in some respects. The FAA has recently taken the position that a hobbyist’s video taken from a drone may nonetheless constitute commercial use subject to FAA regulation if the video is posted to YouTube, because the YouTube website includes advertisements.  This broad interpretation of “commercial use” could have significant implications if the FAA begins to regulate drone use that may have started out as recreational, but that it asserts became commercial only because it was posted on the internet.   What if a hobbyist posts a video to a website that does not include ads, but is then linked to another website that includes advertisements?  Do drone users have First Amendment rights to video taken by a drone-mounted camera and are those rights implicated by any government attempt to regulate the video after-the-fact?

Another reason why it is so important to establish the boundaries of the FAA’s jurisdiction is that if the FAA can not regulate commercial drone use, then States and local municipalities and agencies likely can, without raising issues of federal preemption.  But if the FAA asserts jurisdiction over drone use simply because video ends up on a website containing advertising, then local regulation may be limited—local agencies will have to rely on reasons other than safety as a basis for regulating drone use.

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FAA Approves Amazon Drone Delivery Test

Today, in a move that could fundamentally alter the future of commercial drone use in the United States, the FAA granted Amazon limited permission to begin testing its drone delivery service, Amazon Prime Air.  The FAA’s permission, expressed in the form of an “experimental airworthiness certificate” is notable for the limits it imposes.  First, Amazon may begin testing drones only in an isolated parcel of property in rural Washington State.  Amazon may only fly drones below 400 feet, only during daylight hours, and only within the line of sight of the operator.  The drone must be operated by a pilot with a certificate to fly a private manned aircraft. Amazon must report to the FAA each month,  providing the number of flights conducted, pilot duty time per flight, unusual hardware or software malfunctions, any deviations from air traffic controllers’ instructions, and any unintended loss of communication links.

Nevertheless, Amazon is the 600 pound gorilla in the commercial drone industry.  Its commencement of testing—even as the FAA is in the midst of the public comment period for its proposed Rule on commercial drone use—signals that drone delivery is coming to an airspace near you.  The only question is when.

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Commercial Drones and Privacy of Operators — Lessons to Be Learned from EU Recommendation?

The European Union is far ahead of the United States when it comes to regulating commercial drone use.  The EU’s position is much friendlier to commercial use than the recently proposed FAA rules in the United States.  However, the EU has just released a report on the Civilian Use of Drones in the EU that is notable in one particular respect that could impact privacy laws and regulations presently being considered at various levels throughout the United States, both federal and State.  The EU’s report recommends requiring identification of all drones and drone operators.  The EU report considers such identification “essential to enforce existing and future laws governing [drone] use.”  I have previously written about California legislative efforts to protect privacy from drone users.  But no law in the United States to my knowledge has required identification of drone operators, or registration of drones.  Privacy implications to drone operators could be significant.

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City of Berkeley Passes First-In-California Drone Regulation

On Tuesday, February 25, the Berkeley City Council enacted a one-year moratorium on City use of drones—in particular use by law enforcement for any purpose.  The original proposal was for a more significant, and longer, prohibition.  But the Council adopted a more limited proposal that extends for only one year and includes an exemption that allows the Fire Department to use drones for disaster response purposes.  The Council made clear that the moratorium would not affect private use, but any limitation on use by local government has the potential to affect the market for commercial drones.  In addition, privacy concerns expressed by the Council could inform broader legislation to be considered in the future.  To that end,  the Council also voted to  continue to study and draft more comprehensive drone policy for consideration a year from now.  The City has not yet posted the minutes of the meeting or published a version of the resolution as adopted by the City Council. But here is a link to the Council agenda which includes a video of the discussion of the item.

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FAA Issues New Proposed Rule on Commercial Drone Use

In what will certainly shape the future of commercial drone use in the United States, the FAA over the weekend issued its long awaited proposed rule on commercial drone use (PDF).  Here’s a link to the proposed rulemaking.

Here’s a link to a summary of the proposed rule: www.faa.gov/regulations_policies/ rulemaking/media/021515_sUAS_Summary.pdf

Following are a few of the operational limitations on commercial drone use proposed by the FAA:

  • Drones must be under 55 pounds
  • Flights must take place during daylight hours
  • Flights must take place within visual line of sight of the operator
  • Operators may work with a visual observer, but the operator still must be able to maintain visual line of sight
  • The drone must be registered and aircraft markings are required
  • Operators must be 17 years old, pass an aeronautical knowledge test, hold an FAA UAS operator certificate, and pass a TSA background check
  • Aeronautical knowledge testing must be renewed every 24 months (no private pilot license or medical rating would be required)
  • Operators must ensure their aircraft is safe for flight, but there are no burdensome airworthiness standards or certification requirements (a preflight inspection conducted by the operator, checking communications links and equipment will be sufficient)
  • Operators must report an accident to the FAA within 10 days of any operation that results in injury or property damage
  • No operations are allowed in Class A (18,000 feet & above) airspace. Operations in Class B, C, D and E airspace are allowed with the required ATC permission, Operations in Class G airspace are allowed without ATC permission
  • The new rules will not apply to model aircraft if those operators continue to satisfy all of the criteria specified in Sec. 336 of Public Law 112-95, including the stipulation that they be operated only for hobby or recreational purposes
  • The proposed rule maintains the existing prohibition against operating in a careless or reckless manner. It also would bar an operator from allowing any object to be dropped from the UAS

The proposed rule will now go through a lengthy public comment period.  It is not expected that a final rule will be issued before 2017.

As expected, the new proposed rule focus on safety and security.  Some implications of the new proposed rule:  First, the limitation on remote operation would seemingly prohibit any use of drones for delivery — for instance by Amazon.  This limitation also effectively limits the kinds of apps that might be developed to control drones through a smart phone.

Second, the proposed rule is silent on the all-important issue of privacy with regard to commercial drone use.  Senator Ed Markey (D-Mass.) said the order was insufficient and that he would introduce legislation requiring stronger privacy rules. “It stops short of ensuring that the strongest safeguards are in place to protect privacy and promote transparency,” Markey said. “The FAA order merely directs NTIA to come up with a voluntary framework for privacy for commercial drone use. We need strong, enforceable rules for both commercial and government activities that require transparency about the collection, use, and retention of data collected by drones before they take flight.”  Absent any federal legislation, State and local laws will be needed to clarify the privacy implications of increased drone use, including any warrant requirements.

However, President Obama issued an executive order that accompanied the new FAA proposed rules. The President’s executive order — officially a Presidential memorandum titled “Presidential Memorandum: Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems” — requires federal agencies to implement guidelines and publicize policies by February 15, 2016.  Such guidelines and policies must be updated every three years.  These policies apply only to use of drones by government and do not directly impact commercial drone use.  With regard to private commercial use of drones, the Presidential Memorandum requires that the Department of Commerce’s, National Telecommunications & Information Administration (NTIA) begin a process for creating privacy, accountability and transparency rules for commercial and private uses of drones.  Any such rules will take at least a year to develop — perhaps longer — and will be voluntary.

The FAA Rulemaking process is likely to elicit considerable comment and attention from the drone industry.  Notwithstanding the importance of the federal regulations governing safety and security, there are still large legal gaps that remain to be filled by State and local legislators and regulators.

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Justice Brennan’s Prophetic Dissent in Florida v. Riley

In Florida v. Riley (488 U.S. 445), decided in 1989, the United States Supreme Court held that the Fourth Amendment did not require law enforcement to obtain a warrant before conducing surveillance from a helicopter hovering 400 feet above the ground.  Here is an excerpt from Justice Brennan’s dissent, which is not only prophetic, but makes one amazed at the rapid progress of technology that has given rise to the increased use of commercial drones:

Imagine a helicopter capable of hovering just above an enclosed courtyard or patio without generating any noise, wind, or dust at all—and, for good measure, without posing any threat of injury. Suppose the police employed this miraculous tool to discover not only what crops people were growing in their greenhouses, but also what books they were reading and who their dinner guests were. Suppose, finally, that the FAA regulations remained unchanged, so that the police were undeniably “where they had a right to be.” Would today’s plurality continue to assert that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” was not infringed by such surveillance? Yet that is the logical consequence of the plurality’s rule . . . . (Florida v. Riley, 488 U.S. 445, 462-63)

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A Drone as Extension of Its Operator

Should homeowners be allowed to exclude drones from airspace above their property? Does it matter if the drone is flying ten feet above the ground or 100 feet above the ground? Clearly, homeowners can not prohibit airplanes from flying overhead—federal law authorizes flight within “navigable airspace,” usually defined as above 400 feet. Just as clearly, property owners can prohibit trespassing on the surface of their land. But there is presently no legal clarity as to property rights in the airspace in which a commercial drone traditionally operates. SB 142 (Jackson), introduced on January 26, 2015, prohibits the unauthorized use of unmanned aerial vehicles in airspace directly over private property but below the 400 foot altitude clearly regulated by the FAA. “If a drone invades your private property, it is an extension of the person sending the drone,” said Sen. Hannah-Beth Jackson.

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“The Backwards Set of Rules Governing the Drone Industry in the United States”

Here’s a link to a NY Times article describing what it describes as “the backward set of rules governing the drone industry in the United States.”

www.nytimes.com/2015/02/05/technology/personaltech/giving-the-drone-industry-the-leeway-to-innovate.html

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Questions for Cities Seeking to Regulate Commercial Drone Use

In the absence of federal and State legislation, local municipalities in California may seek to regulate commercial drone use in the months ahead.  There are numerous questions a City seeking to regulate drone use will have to answer and there are as yet no firm answers.   Especially given the uncertainty regarding the preemptive nature of any federal regulation (or as-yet enacted State law), it is unclear the extent to which a City will be able to regulate the manner in which drones are used within their jurisdictions.  To what extent may a City rely on safety or aesthetic concerns to limit the time and location where commercial drones may be used?  Will a City be able to require a business license from anyone seeking to operate a drone for commercial purposes?  Will a City be able to regulate the media’s use of drones as a replacement, or addition, to helicopters?  May a City enact privacy protections beyond those included in any State law?

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